83R2213 BEF-F
By: Hinojosa S.B. No. 1433
A BILL TO BE ENTITLED
AN ACT
relating to certain regulatory programs administered by the
Department of Agriculture; providing penalties; imposing fees.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. ADMINISTRATIVE PENALTIES
SECTION 1.01. Section 12.020, Agriculture Code, is amended
by amending Subsections (g), (h), (i), (j), (k), and (o) and adding
Subsection (j-1) to read as follows:
(g) Not later than the 20th day after the date on which
notice is received, the person charged shall [may] accept the
determination of the department made under Subsection (e) [of this
section], including the recommended penalty, or make a written
request for a hearing on the determination.
(h) If the person charged with the violation accepts the
determination of the department or fails to timely respond to the
notice, the commissioner shall issue an order approving the
determination and ordering the payment of the recommended penalty.
(i) If the person charged requests a hearing [or fails to
timely respond to the notice], the department shall set a hearing
and give notice of the hearing. The hearing shall be conducted
under Section 12.032. The administrative law judge shall make
findings of fact and conclusions of law and promptly issue to the
commissioner a proposal for decision as to the occurrence of the
violation, including a recommendation as to the amount of the
proposed penalty if a penalty is warranted. Based on the findings
of fact, conclusions of law, and recommendations of the judge, the
commissioner by order may find a violation has occurred and may
assess a penalty or may find that no violation has occurred.
(j) The department shall give notice of the commissioner's
order under Subsection (h) or (i) to the person charged. The notice
shall include:
(1) the findings of fact and conclusions of law
separately stated;
(2) the amount of the penalty ordered, if any;
(3) a statement of the right of the person charged to
judicial review of the commissioner's order, if any; and
(4) other information required by law.
(j-1) Not later than the 30th day after the date notice is
provided under Subsection (j), a person ordered to pay a penalty
under Subsection (h) shall pay the penalty.
(k) Within the 30-day period immediately following the day
on which the order under Subsection (i) becomes final under Section
2001.144, Government Code, the person charged with the penalty
shall:
(1) pay the penalty in full;
(2) pay the amount of the penalty and file a petition
for judicial review contesting the occurrence of the violation, the
amount of the penalty, or both the occurrence of the violation and
the amount of the penalty; or
(3) without paying the amount of the penalty, file a
petition for judicial review contesting the occurrence of the
violation, the amount of the penalty, or both the occurrence of the
violation and the amount of the penalty.
(o) Judicial review of the order of the commissioner under
Subsection (i):
(1) is instituted by filing a petition as provided by
Subchapter G, Chapter 2001, Government Code; and
(2) is under the substantial evidence rule.
SECTION 1.02. The changes in law made by this article to
Section 12.020, Agriculture Code, apply only to a violation
committed on or after the effective date of this Act. A violation
committed before the effective date of this Act is governed by the
law in effect on the date the violation was committed, and the
former law is continued in effect for that purpose. For purposes of
this section, a violation was committed before the effective date
of this Act if any element of the violation occurred before that
date.
ARTICLE 2. CEASE AND DESIST ORDERS
SECTION 2.01. Section 12A.002, Agriculture Code, is amended
to read as follows:
Sec. 12A.002. CEASE AND DESIST ORDER. (a) If it appears to
the department [commissioner] that a person who is not licensed by
the department is violating a statute or rule that requires the
person to hold a license issued by the department or a statute or
rule relating to an activity regulated by the department, the
department [commissioner after notice and opportunity for a
hearing] may issue a cease and desist order prohibiting the person
from engaging in the activity.
(b) The person to whom a cease and desist order has been
issued under Subsection (a) may seek relief from the order at any
time by filing suit against the department in a district court of
Travis County. The court shall fix the time of the hearing not
earlier than three days or later than 20 days after the date of
service of the notice. The burden is on the person subject to the
cease and desist order to show by a preponderance of the evidence
that the person is lawfully entitled to engage in the activity that
is the subject of the cease and desist order, that the action taken
or order issued by the department was not authorized, or, if the
order was authorized, that the order was an abuse of the
department's discretion.
(c) A violation of an order under this section constitutes
grounds for imposing an administrative penalty if a violation of
the law governing the activity prohibited by the order is grounds
for imposing an administrative penalty. A violation of an order
under this section constitutes grounds for imposing a civil penalty
of not less than $50 or more than $2,000 for each violation. Each
day a violation occurs or continues to occur may be considered a
separate violation for purposes of imposing an administrative or
civil penalty.
(d) If it appears that a person has violated or is
threatening to violate a cease and desist order issued under this
section, the commissioner may bring a civil action in a district
court for:
(1) injunctive relief to restrain the person from
continuing the violation or threat of violation;
(2) the assessment and recovery of a civil penalty
under Subsection (c); or
(3) both injunctive relief and a civil penalty.
(e) On application for injunctive relief and a finding by
the court that a person is violating or threatening to violate a
cease and desist order issued under this section, the court shall
grant injunctive relief as the facts warrant.
(f) At the request of the commissioner, the attorney general
shall bring an action for injunctive relief, to recover a civil
penalty, or both.
SECTION 2.02. Subchapter A, Chapter 12A, Agriculture Code,
is amended by adding Section 12A.004 to read as follows:
Sec. 12A.004. PENALTY FOR VIOLATING CEASE AND DESIST ORDER.
(a) A person commits an offense if the person violates a cease and
desist order issued under Section 12A.002.
(b) Except as provided by Subsection (c), an offense under
Subsection (a) is a Class A misdemeanor.
(c) An offense under Subsection (a) is a felony of the third
degree if the person has previously been convicted of an offense
under this section.
SECTION 2.03. The changes in law made by this article to
Section 12A.002, Agriculture Code, apply only to a violation
committed on or after the effective date of this Act. A violation
committed before the effective date of this Act is governed by the
law in effect on the date the violation was committed, and the
former law is continued in effect for that purpose. For purposes of
this section, a violation was committed before the effective date
of this Act if any element of the violation occurred before that
date.
ARTICLE 3. TERM AND RENEWAL OF LICENSES
SECTION 3.01. Section 12.023, Agriculture Code, is amended
to read as follows:
Sec. 12.023. TERM AND EXPIRATION OF REGISTRATION OR
LICENSES. (a) Notwithstanding any other provision of this code or
Chapter 1951, Occupations Code, that establishes the term of a
license or registration issued by the department, the department by
rule may prescribe the term of the license or registration.
(b) The department by rule shall adopt a system under which
registrations or licenses required by the department, including
licenses issued under Chapter 1951, Occupations Code, expire on
various dates during the year. The department may increase or
decrease the term of an initial or renewal license or registration
so that all licenses held by a person or a group of license holders
expire on the same date. For the period in which the registration
or license expiration date is changed, registration or license fees
shall be prorated on a monthly basis so that each registrant or
licensee pays only that portion of the fee that is allocable to the
number of months during which the registration or license is
valid. On the next renewal of the registration or license, the
total renewal fee is payable.
SECTION 3.02. Section 12.024(f), Agriculture Code, is
amended to read as follows:
(f) At least 30 days before the expiration of a person's
license or registration, the department shall attempt to send
[written] notice of the impending license or registration
expiration to the person at the license holder's or registrant's
last known e-mail or physical address according to the records of
the department.
SECTION 3.03. Section 14.023(b), Agriculture Code, is
amended to read as follows:
(b) An applicant must file a separate application for each
license, renewal, or amendment and shall accompany each application
for a license or renewal with a [an annual] license fee, as provided
by department rule. The department shall prescribe the information
to be contained in the application. A person who fails to submit a
renewal fee on or before the expiration date of the license must
pay, in addition to the renewal fee, the late fee provided by
Section 12.024.
SECTION 3.04. Sections 71.043(b), (c), and (d), Agriculture
Code, are amended to read as follows:
(b) A florist or nursery owner may apply for registration or
renewal of registration by submitting an application prescribed by
the department and a [an annual] fee. The fee shall be the sum of:
(1) an amount based on the size and type of a location,
as defined by department rule, where a florist or nursery owner
grows for sale or lease or offers for sale or lease a florist item or
nursery product; and
(2) an optional additional amount equal to 15 percent
of the amount described by Subdivision (1), to fund the Texas
nursery and floral account.
(c) Registrations under this section expire at the end of
the registration period established by department rule [one year
after issuance]. A person who fails to submit a renewal fee on or
before the expiration date of the registration must pay, in
addition to the renewal fee, the late fee provided by Section 12.024
of this code.
(d) Upon receipt of the correct [annual] registration fee,
the department shall issue a registration certificate for each
location a florist or nursery owner has registered.
SECTION 3.05. Section 76.043(a), Agriculture Code, is
amended to read as follows:
(a) Registration of a pesticide expires at the end of the
registration period established by department rule. The [on the
second anniversary of the date of its approval or renewal except
that the] department shall by rule adopt a system under which
registrations expire on various dates during the year.
SECTION 3.06. Section 76.072, Agriculture Code, is amended
to read as follows:
Sec. 76.072. EXPIRATION. A pesticide dealer license
expires at the end of the license period established by department
rule. The [on the second anniversary of the date of its granting or
renewal unless the] department by rule may adopt [adopts] a system
under which licenses expire on specified dates during a year.
SECTION 3.07. Section 76.108(b), Agriculture Code, is
amended to read as follows:
(b) A person shall apply for an original or renewal
commercial applicator license on forms prescribed by the regulatory
agency. The application shall include information as required by
rule of the head of the agency and must be accompanied by a [an
annual] license fee, as fixed by the head of the agency.
SECTION 3.08. Section 76.109(b), Agriculture Code, is
amended to read as follows:
(b) A person shall apply for an original or renewal
noncommercial applicator license on forms prescribed by the
regulatory agency. The applicant shall include with the application
a [an annual] license fee, as fixed by the governing body of or the
head of the regulatory agency. The governing body of or the head of
the regulatory agency may set other fees as necessary to defray the
costs of administering a pesticide applicator certification
program.
SECTION 3.09. Sections 76.113(a) and (c), Agriculture Code,
are amended to read as follows:
(a) Each pesticide applicator license issued under this
chapter[, other than a private applicator license,] expires at the
end of the license period established by department rule.
(c) Except as provided by Subsection (d) [of this section],
a person having a valid license issued under this subchapter may
renew the license for another term without retesting by paying to
the regulatory agency the license fee required by this subchapter.
A person who fails to apply for renewal of a license on or before the
expiration date must pay, in addition to the [annual] license fee,
the late fee provided by Section 12.024 of this code.
SECTION 3.10. Section 101.008(a), Agriculture Code, is
amended to read as follows:
(a) A license expires at the end of the license period
established by department rule [one year from the date of
issuance].
SECTION 3.11. Section 132.024, Agriculture Code, is amended
to read as follows:
Sec. 132.024. LICENSE TERM. A license issued or renewed
under this chapter expires at the end of the license period
established by department rule [is valid for one year].
SECTION 3.12. Section 134.015(b), Agriculture Code, is
amended to read as follows:
(b) A license is valid for the period established by
department rule [two years after the date of issuance]. The
department shall renew a license on submission by the licensee of a
completed application and a renewal fee, as provided by department
rule, unless the department determines that the licensee has
violated this chapter or a rule adopted under this chapter.
SECTION 3.13. Section 76.113(b), Agriculture Code, is
repealed.
ARTICLE 4. REGULATION OF WEIGHTS AND MEASURES
SECTION 4.01. Section 13.001(a), Agriculture Code, is
amended to read as follows:
(a) In this chapter:
(1) "Commercial weighing or measuring device" means a
weighing or measuring device used in a commercial transaction
["Weight or measure of a commodity" means the weight or measure of a
commodity as determined by a weighing or measuring device].
(2) "Operator" or "user" means a person in possession
or control of a weighing or measuring device.
(3) "Sell" includes barter or exchange.
(4) [(3)] "Weighing or measuring device" means[:
[(A)] a scale[;] or
[(B)] a mechanical or electronic device used to
dispense or deliver a commodity by weight, volume, flow rate, or
other measure or to compute the charge for a service.
(5) "Weight or measure of a commodity" means the
weight or measure of a commodity as determined by a weighing or
measuring device.
SECTION 4.02. Section 13.007, Agriculture Code, is amended
by amending Subsection (a) and adding Subsection (e) to read as
follows:
(a) A person who violates this chapter or a rule adopted
under this chapter is liable to the state for a civil penalty of not
less than $250 or more than $10,000 [to exceed $500] for each
violation. Each day a violation occurs or continues to occur may be
considered a separate violation for purposes of a civil penalty
assessment.
(e) The department and the attorney general may each recover
reasonable expenses incurred in obtaining injunctive relief and
civil penalties under this section, including investigative costs,
court costs, reasonable attorney's fees, witness fees, and
deposition expenses. The expenses recovered by the department may
be appropriated only to the department for the administration and
enforcement of this chapter. The expenses recovered by the
attorney general may be appropriated only to the attorney general.
SECTION 4.03. Section 13.021(b), Agriculture Code, is
amended to read as follows:
(b) The department may adopt rules for the purpose of
administering this subchapter and bringing about uniformity
between the standards established under this subchapter and the
standards established by federal law. [A person who violates a rule
adopted under this subsection commits an offense.]
SECTION 4.04. Section 13.024, Agriculture Code, is amended
by amending Subsection (b) and adding Subsection (d) to read as
follows:
(b) [The barrel consists of 31-1/2 gallons. A hogshead
consists of two barrels.] Except as provided by Subsections
[Subsection] (c) and (d), [of this section] all other measures of
capacity for liquids are derived from the gallon by continual
division by two, making half gallons, quarts, pints, half pints,
and gills.
(d) For purposes of the retail sale of motor fuel only, the
liquid gallon contains 231 cubic inches without adjustment based on
the temperature of the liquid.
SECTION 4.05. Section 13.027(b), Agriculture Code, is
amended to read as follows:
(b) A person violates this chapter [commits an offense] if
the person fails or refuses to comply with the rules adopted under
this section.
SECTION 4.06. Section 13.031(f), Agriculture Code, is
amended to read as follows:
(f) A person violates this chapter [commits an offense] if,
in violation of this section, the person sells a liquid commodity by
other than liquid measure or a commodity that is not liquid by a
measure other than length, weight, or numerical count.
SECTION 4.07. Section 13.033, Agriculture Code, is amended
to read as follows:
Sec. 13.033. SALE OF MILK OR CREAM IN NONSTANDARD
CONTAINER. A person violates this chapter [commits an offense] if
the person sells or keeps, offers, or exposes for sale milk or cream
in bottles or other containers of a capacity other than one of the
standard liquid measures provided for by Section 13.024 [of this
code].
SECTION 4.08. Section 13.034(d), Agriculture Code, is
amended to read as follows:
(d) A person violates this chapter [commits an offense] if,
in violation of this section, the person sells or keeps, offers, or
exposes for sale cheese, meat, or a meat food product by a measure
other than standard net weight.
SECTION 4.09. Section 13.035(b), Agriculture Code, is
amended to read as follows:
(b) A person violates this chapter [commits an offense] if
the person:
(1) misrepresents the price of a commodity, item, or
service sold or offered or exposed for sale; or
(2) represents the price or the quantity of a
commodity, item, or service sold or offered or exposed for sale in a
manner intended or tending to mislead or deceive an actual or
prospective customer.
SECTION 4.10. Section 13.036, Agriculture Code, is amended
to read as follows:
Sec. 13.036. FALSE REPRESENTATION OF COMMODITY QUANTITY. A
person violates this chapter [commits an offense] if the person or
the person's servant or agent:
(1) sells or offers or exposes for sale a quantity of a
commodity or service that is less than the quantity the person
represents; or
(2) as a buyer furnishing the weight or measure of a
commodity or service by which the amount of the commodity or service
is determined, takes or attempts to take more than the quantity the
person represents.
SECTION 4.11. Section 13.037(a), Agriculture Code, is
amended to read as follows:
(a) A person commits an offense if the person or the
person's servant or agent knowingly uses an incorrect weighing or
measuring device in:
(1) buying or selling a commodity;
(2) computing a charge for services rendered on the
basis of weight or measure; or
(3) determining the weight or measure of a commodity,
if a charge is made for the determination.
SECTION 4.12. Section 13.038, Agriculture Code, is amended
to read as follows:
Sec. 13.038. SALE OF COMMODITY IN VIOLATION OF SUBCHAPTER.
A person violates this chapter [commits an offense] if the person or
the person's servant or agent sells or keeps, offers, or exposes for
sale a commodity in violation of this subchapter.
SECTION 4.13. Section 13.040, Agriculture Code, is amended
to read as follows:
Sec. 13.040. STOP-SALE ORDER. (a) If the department has
reason to believe that a commodity is being sold or kept, offered,
or exposed for sale in violation of [Section 13.030, 13.031,
13.032, 13.033, 13.034, 13.035, 13.036, or 13.037 of] this chapter
or that a commodity or service is being sold or offered for sale by
or through the use of a weighing or measuring device that is in
violation of this chapter [code], the department may issue and
enforce a written or printed order to stop the sale of the commodity
or service. The department shall present the order to the owner or
custodian of the commodity or seller of the service. The person
receiving the order may not sell the commodity or provide the
service until discharged by a court under Subsection (b) [of this
section] or until the commissioner finds that the commodity or
weighing or measuring device is in compliance with this chapter
[the applicable section].
(b) The owner or custodian of a commodity or a person
selling or offering for sale a service prohibited from sale by an
order of the department is entitled to sue in a court of competent
jurisdiction where the commodity is found or the service is being
sold or offered for sale for a judgment as to the justification of
the order and for the discharge of the commodity or service in
accordance with the findings of the court.
(c) This section does not limit the right of the department
to proceed as authorized by other sections of this code
[subchapter].
SECTION 4.14. Section 13.041, Agriculture Code, is amended
to read as follows:
Sec. 13.041. PENALTIES; DEFENSE. (a) An offense under
Section [13.021, 13.027, 13.029, or each of Sections] 13.030,
13.032, 13.037, or [through] 13.039 [of this code] is a Class B [C]
misdemeanor, unless the person has been previously convicted of an
offense under any of those sections, in which case the offense is a
Class A misdemeanor.
(b) It is a defense to prosecution or to the imposition of a
civil or administrative penalty for a violation of [under] Sections
13.030-13.038 [of this code] that a discrepancy between the actual
weight or volume at the time of sale to a consumer and the weight
marked on the container or a discrepancy between the fill of a
container and the capacity of the container is due to unavoidable
leakage, shrinkage, evaporation, waste, or causes beyond the
control of the seller acting in good faith.
SECTION 4.15. Subchapter C, Chapter 13, Agriculture Code,
is amended by adding Section 13.1001 to read as follows:
Sec. 13.1001. AUTHORITY TO INSPECT. (a) If the department
has reason to believe that a weighing or measuring device is being
used for a commercial transaction and the device is not registered
with the department, the department may inspect the device and the
records of the owner, operator, or user of the device that relate to
use of the device to determine whether the device is in compliance
with this chapter.
(b) The department has reason to believe a weighing or
measuring device is being used for a commercial transaction if:
(1) the weighing or measuring device is found in close
proximity to commodities being sold or offered for sale by weight or
measure and the device appears to be under the control or in the
possession of the person selling the commodities or offering the
commodities for sale; or
(2) other available evidence is sufficient for a
prudent person to believe that the weighing or measuring device is
being used for a commercial transaction.
SECTION 4.16. Section 13.101, Agriculture Code, is amended
to read as follows:
Sec. 13.101. [REQUIRED] INSPECTION OF DEVICES. (a) Unless
a commercial weighing or measuring device is exempt from the
application of this section by department rule, a commercial
weighing or measuring device shall be inspected and tested for
correctness by the department at [At] least once every four years,
or more often as required by the department, [a weighing or
measuring device shall be inspected and tested for correctness by
the department] if it:
(1) is kept for sale, sold, or used by a proprietor,
agent, lessee, or employee in proving the weight or measure,
including the size, quantity, extent, or area, of any item; or
(2) is purchased, offered, or submitted by a
proprietor, agent, lessee, or employee for sale, hire, or award.
(b) The department may [shall], to the extent necessary to
ensure compliance with the official standards, implement
risk-based inspections, respond to complaints, and, as a term of
probation, require or perform additional inspection and testing of
commercial weighing or measuring devices.
(c) A person who uses or keeps for use, or has or offers for
sale, a commercial weighing or measuring device is responsible for
having the device inspected and tested as required by this section,
department rule, or department order imposing a term of probation.
(d) [Unless the department requires an additional
inspection, a weighing or measuring device that is inspected and
found correct by the department may be kept for use, used, kept or
offered for sale, or sold without further testing.
[(e)] The department may inspect and test a commercial
weighing or measuring device less frequently than required by
Subsection (a):
(1) to accommodate complaint-based and risk-based
inspection schedules; or
(2) in response to an emergency or a limitation in
department funding.
SECTION 4.17. Section 13.1011, Agriculture Code, is amended
to read as follows:
Sec. 13.1011. REQUIRED REGISTRATION. (a) Unless a
commercial weighing or measuring device is exempt from the
application of this section by department rule, a [A] person who
owns or operates a commercial weighing or measuring device [for a
commercial transaction] shall register the device [annually] with
the department before using the device for a commercial
transaction.
(b) An application for a device registration must:
(1) be submitted to the department on a form
prescribed by the department;
(2) be accompanied by any other document or form
required by the department; and
(3) include the registration fee required under
Section 13.1151. [The department shall establish a system of
annual registration and may provide for staggered year-round
registration.]
(c) A registration under this section is valid for one year
unless a different period is established by department rule. The
registration must be renewed at or before the end of each
registration period and the application for renewal must include
the renewal fee required by department rule.
(d) If a person fails to register or renew a registration as
required by this section and pay the fee required under Section
13.1151, the department may assess a late fee against the person,
prohibit the operation of the weighing or measuring device, or both
assess the fee and prohibit the operation of the device.
[(d) The department shall adopt rules for the
administration of this section and Section 13.1151 of this code.]
SECTION 4.18. Section 13.111, Agriculture Code, is amended
to read as follows:
Sec. 13.111. REPAIR OR DESTRUCTION OF INCORRECT COMMERCIAL
WEIGHING OR MEASURING DEVICES. (a) If, in the judgment of the
department, a commercial weighing or measuring device found to be
incorrect is not capable of being repaired, the department may
condemn, seize, and destroy the device.
(b) If, in the judgment of the department, an incorrect
commercial weighing or measuring device is capable of being
repaired, the department shall place on the device a tag or other
mark with the words "Out of Order." The owner or user of the
commercial weighing or measuring device may [have it repaired
within 30 days, but may] not use [or dispose of] it until it is
reinspected and released for use by the department or inspected and
released for use in any other manner authorized by department rule.
(c) The owner, operator, or user of a commercial weighing or
measuring device may not destroy, replace, or otherwise dispose of
a device declared to be incorrect or condemned under this section
except as provided by department rule.
SECTION 4.19. Section 13.113, Agriculture Code, is amended
by amending Subsections (a), (d), and (e) and adding Subsections
(f), (g), and (h) to read as follows:
(a) The standards of weights and measures maintained by the
department [received from the United States] and certified by the
National Institute of Standards and Technology or a metrology
laboratory certified by the National Institute of Standards and
Technology are the state's standards by which all state and local
standards of weights and measures are tried, authenticated, proved,
and certified.
(d) At the request of a city, the department shall furnish
the city with copies of the state's standards or test and approve
other standards acquired by the city. The city shall reimburse the
state for the actual cost of the standards furnished, plus the costs
of freight and certification. All standards furnished to or tested
for a city shall be true and correct and[,] certified by the
department[, and stamped with the letter "C"]. The copies used by a
city may be of any suitable material or construction that the city
requests, subject to approval by the department.
(e) The department, or a metrology laboratory certified by
the National Institute of Standards and Technology and approved by
the department, shall inspect and correct the standards used by a
department inspector, other department employee, or individual or
business licensed by the department to perform device maintenance
activities under Subchapter I [private maintenance, repairs, or
calibration of weighing or measuring devices at least once every
year].
(f) The department may adopt rules to regulate the frequency
and place of inspection and correction of the standards used by an
individual or business licensed by the department to perform device
maintenance activities under Subchapter I.
(g) The department may inspect any standard used by an
individual or business licensed by the department to perform device
maintenance activities described by Subchapter I if the department
has reason to believe a standard is no longer in compliance with
this chapter.
(h) The department shall keep a record of the inspection and
character of standards [weights and measures] inspected under this
section [subsection].
SECTION 4.20. Section 13.114, Agriculture Code, is amended
to read as follows:
Sec. 13.114. TOLERANCES. [(a)] The department shall
establish specifications and tolerances [and specifications] for
commercial weighing or measuring devices used in this state. The
specifications and tolerances [and specifications] shall be
similar to those recommended by the National Institute of Standards
and Technology.
[(b) A person commits an offense if the person fails or
refuses to comply with the tolerances and specifications
established under this section.]
SECTION 4.21. Section 13.115(a), Agriculture Code, is
amended to read as follows:
(a) The department may [shall] collect a fee [in accordance
with this section] for each test of a weighing or measuring device
required by this subchapter or performed on request of the owner.
SECTION 4.22. Section 13.117, Agriculture Code, is amended
to read as follows:
Sec. 13.117. REFUSING TO ALLOW TEST OF WEIGHING OR
MEASURING DEVICE. A person commits an offense if the person
[neglects or] refuses to allow a weighing or measuring device under
the person's control or in the person's possession to be inspected,
tested, or examined by the department, and the inspection, test, or
examination is required or authorized by this chapter.
SECTION 4.23. Section 13.119, Agriculture Code, is amended
to read as follows:
Sec. 13.119. REMOVAL OF REGISTRATION TAG. A person commits
an offense if the person removes or obliterates a tag or device
placed or required by the department to be placed on a weighing or
measuring device under this chapter.
SECTION 4.24. Section 13.120(b), Agriculture Code, is
amended to read as follows:
(b) A person commits an offense if the person or the
person's servant or agent knowingly:
(1) offers or exposes for sale, hire, or award or sells
an incorrect weighing or measuring device;
(2) possesses an incorrect weighing or measuring
device; or
(3) sells, offers for sale, uses, or possesses for the
purpose of sale or use a device or instrument to be used to falsify
or intended to falsify a weight or measure.
SECTION 4.25. Section 13.122, Agriculture Code, is amended
to read as follows:
Sec. 13.122. PENALTIES. (a) An offense under Section
13.119, 13.120, or [13.114 or each of Sections 13.116 through]
13.121 is a Class C misdemeanor, unless the person has been
previously convicted of an offense under any of those sections, in
which case the offense is a Class B misdemeanor.
(b) An offense under Section 13.117 or 13.118 is a Class B
misdemeanor, unless the person has been previously convicted of an
offense under any of those sections, in which case the offense is a
Class A misdemeanor.
SECTION 4.26. Chapter 13, Agriculture Code, is amended by
adding Subchapter I to read as follows:
SUBCHAPTER I. LICENSING OF SERVICE TECHNICIANS AND SERVICE
COMPANIES
Sec. 13.451. DEFINITIONS. In this subchapter:
(1) "License holder" means a person who holds a
service company license or a service technician license.
(2) "Service company" means a person who holds a
service company license issued by the department under this
subchapter.
(3) "Service technician" means an individual who holds
a service technician license issued by the department under this
subchapter.
Sec. 13.452. DEVICE MAINTENANCE ACTIVITIES. A person
performs device maintenance activities if the person or the
person's employee:
(1) places a commercial weighing or measuring device
in service;
(2) installs, calibrates, or repairs a commercial
weighing or measuring device; or
(3) removes an out-of-order tag, stop-sale order,
security seal, lock, condemnation notice, or other form of use
prohibition placed on a weighing or measuring device by the
department.
Sec. 13.453. POWERS AND DUTIES OF DEPARTMENT. (a) To
verify compliance with licensing requirements, trade practices,
department rules, and this chapter, the department may periodically
or in response to a complaint or previous violation inspect an
applicant's or license holder's:
(1) facilities;
(2) inspecting and testing equipment and procedures;
(3) repair and calibration equipment, standards, and
procedures;
(4) transportation equipment; and
(5) invoices, work orders, and other records related
to device maintenance activities.
(b) The department may periodically or in response to a
complaint or previous violation monitor and inspect or test
weighing or measuring devices that have been inspected and tested
by a license holder and any standards used by the license holder
during an inspection or test.
(c) The department by rule may adopt additional
requirements for the issuance of a license and for the denial of an
application for a license or renewal of a license. Rules adopted by
the department under this subsection must be designed to protect
the public health, safety, and welfare and the proper inspection,
testing, and operation of commercial weighing and measuring
devices.
(d) The department may adopt other rules necessary for the
regulation of device maintenance activities, for the proper
operation of commercial weighing and measuring devices, and to
protect the health, safety, and welfare of the public and license
holders.
(e) The department may specify the date, time, and place for
any inspection authorized by this section.
Sec. 13.454. EXEMPTIONS FROM LICENSE REQUIREMENTS. (a) A
person is not required to hold a license issued under this
subchapter if the person:
(1) is a department employee who is performing device
maintenance activities in the scope of the person's duties for the
department;
(2) is the owner or operator of a commercial weighing
or measuring device or an employee of the owner or operator of a
commercial weighing or measuring device and the person:
(A) completely removes the commercial weighing
or measuring device from the location at which the device was
installed, including a device subject to an out-of-order tag,
stop-sale order, security seal, lock, condemnation notice, or other
item placed on the device by the department to prohibit use of the
device; and
(B) notifies the department of the device's
removal not later than the 10th day after the date the device was
removed in the manner provided by department rule; or
(3) performs device maintenance activities only on a
device that is:
(A) exempt from the registration requirements of
Section 13.1011 under department rules;
(B) exempt from the inspection requirements of
Section 13.101 under department rules; and
(C) not required to be inspected by other
department rules.
(b) The department is not required to hold a license issued
under this subchapter.
Sec. 13.455. SERVICE TECHNICIAN LICENSE REQUIRED. Unless
the individual is exempt from the licensing requirement, an
individual may not perform or offer to perform device maintenance
activities unless the individual holds a service technician license
issued by the department under this subchapter.
Sec. 13.456. SERVICE COMPANY LICENSE REQUIRED. (a) Unless
the person is exempt from the license requirement, a person may not
employ an individual who performs or offers to perform device
maintenance activities unless the person holds a service company
license issued by the department under this subchapter.
(b) Unless the individual is exempt from the licensing
requirement, an individual may not perform or offer to perform
device maintenance activities as a sole proprietor unless the
individual holds a service technician license and a service company
license issued by the department under this subchapter.
Sec. 13.457. APPLICATION FOR LICENSE. An applicant for a
license under this subchapter must submit to the department:
(1) an application form prescribed by the department;
(2) any other documents required by the department;
and
(3) a fee in an amount set by the department.
Sec. 13.458. SERVICE TECHNICIAN LICENSE REQUIREMENTS. (a)
The department shall issue a license to each qualified applicant
who applies for a service technician license.
(b) The department by rule may require an applicant for the
issuance or renewal of a service technician license to meet one or
more of the following requirements:
(1) provide to the department proof that the applicant
has completed an academic, trade, or professional course of
instruction approved by the department;
(2) pass a written test; or
(3) pass a practical skills test.
Sec. 13.459. SERVICE COMPANY LICENSE REQUIREMENTS. (a) The
department shall issue a license to each qualified applicant who
applies for a service company license.
(b) An applicant for the issuance or renewal of a license
under this section must:
(1) submit to the department a certificate of
insurance evidencing that the applicant has an insurance policy
that meets the requirements of Section 13.460 effective for the
period for which the license is to be issued or renewed; and
(2) meet any other requirements provided by department
rule.
Sec. 13.460. INSURANCE POLICY REQUIRED FOR SERVICE COMPANY.
A service company shall maintain at all times while the service
company performs device maintenance activities a current effective
operations liability insurance policy issued by an insurance
company authorized to do business in this state or by a surplus
lines insurer that meets the requirements of Chapter 981, Insurance
Code, and rules adopted by the commissioner of insurance in an
amount set by the department and based on the type of licensed
activities to be performed.
Sec. 13.461. TERM OF LICENSE. A license issued under this
subchapter is valid for one year unless a different term is
established by department rule.
Sec. 13.462. LICENSE RENEWAL. A person licensed under this
subchapter must periodically renew the person's license. The
license expires unless the license holder submits an application
for renewal accompanied by the renewal fee set by the department or
by the late fee set by the department and meets the requirements for
renewal.
Sec. 13.463. PRACTICE BY LICENSE HOLDER. (a) A license
holder shall perform device maintenance activities in compliance
with department rules.
(b) A license holder may use only equipment approved by the
department, as provided by department rules, when performing device
maintenance activities.
Sec. 13.464. CRIMINAL PENALTY. (a) A person commits an
offense if the person violates Section 13.455 or 13.456 or causes
another person to violate Section 13.455 or 13.456.
(b) An offense under Subsection (a) is a Class B
misdemeanor, unless the person has been previously convicted of an
offense under this section, in which case the offense is a Class A
misdemeanor.
SECTION 4.27. The following provisions of the Agriculture
Code are repealed:
(1) Section 13.1012; and
(2) Section 13.115(g).
SECTION 4.28. (a) The following provisions of the
Agriculture Code are repealed:
(1) Subchapter F, Chapter 13;
(2) Subchapter G, Chapter 13; and
(3) Subchapter H, Chapter 13.
(b) This section takes effect March 1, 2014.
SECTION 4.29. The changes in law made by this article to
Sections 13.007, 13.021, 13.027, 13.031, 13.033, 13.034, 13.035,
13.036, 13.037, 13.038, 13.041, 13.114, 13.117, 13.119, 13.120,
13.122, 13.308, 13.358, and 13.407, Agriculture Code, apply only to
an offense or violation committed on or after the effective date of
the relevant change in law. An offense or violation committed
before the effective date of the change in law is governed by the
law in effect on the date the offense or violation was committed,
and the former law is continued in effect for that purpose. For
purposes of this section, an offense or violation was committed
before the effective date of the change in law if any element of the
offense or violation occurred before that date.
SECTION 4.30. Not later than December 1, 2013, the
Department of Agriculture shall adopt rules necessary to implement
Subchapter I, Chapter 13, Agriculture Code, as added by this
article.
SECTION 4.31. Not later than January 1, 2014, the
Department of Agriculture shall begin accepting applications for
and issuing service technician licenses and service company
licenses under Sections 13.458 and 13.459, Agriculture Code, as
added by this article.
SECTION 4.32. Sections 13.455, 13.456, and 13.464,
Agriculture Code, as added by this article, take effect March 1,
2014.
ARTICLE 5. NOTICE OF COMMODITY PRODUCERS BOARD ELECTIONS
SECTION 5.01. Section 41.023(b), Agriculture Code, is
amended to read as follows:
(b) The commissioner by rule shall prescribe the manner for
providing public notice under Subsection (a) [of this section shall
be published in one or more newspapers published and distributed
within the boundaries described in the petition. The notice shall
be published for not less than once a week for three consecutive
weeks, beginning at least 60 days before the date of the election.
In addition, at least 60 days before the date of the election the
certified organization shall give direct written notice to each
county agent in any county within the boundaries described in the
petition].
SECTION 5.02. The change in law made by this article to
Section 41.023(b), Agriculture Code, applies only to an election
ordered on or after the effective date of this Act. An election
ordered before the effective date of this Act is governed by the law
in effect when the election was ordered, and the former law is
continued in effect for that purpose.
ARTICLE 6. PLANT PEST QUARANTINES
SECTION 6.01. Section 71.006, Agriculture Code, is
repealed.
ARTICLE 7. DISPOSITION OF LIVESTOCK EXPORT FACILITIES
SECTION 7.01. Section 2166.003, Government Code, is amended
by adding Subsection (c) to read as follows:
(c) This chapter and Chapter 2175 do not apply to the
disposition, sale, or transfer of a pen, shed, or ancillary
building constructed by and for the Department of Agriculture for
the processing of livestock before export.
ARTICLE 8. EFFECTIVE DATE
SECTION 8.01. Except as otherwise provided by this Act,
this Act takes effect September 1, 2013.